Top 5 Questions to Ask Before Applying for Judicial Review

Judicial review is the process by which a claimant challenges in court a legal decision-making power, issued by a court or other government actor.

Regulated in Ontario by the Judicial Review Procedure ActLRO 1990, cJ1 (the “JRPA”), applications for judicial review generally ask the Court to:

  • annul the administrative decision (certiorari);
  • prohibit the decision-maker from taking any further action (prohibition); and or
  • compel the decision-maker to do something under its applicable law (mandamus).

Below is a list of some of the most important considerations a plaintiff should take into account when deciding whether to seek judicial review from the Ontario Divisional Court.

1. Will the case be returned to the Tribunal?

The success of judicial review can be a mixed blessing.

The reversal of a decision by the Divisional Court generally means that the case will be returned to the court or to the decision-maker for reconsideration, in accordance with the Court’s decision.

In the leading Supreme Court of Canada decision in 2019, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the majority held that if the Court finds an administrative decision to be unreasonable, it “will most often be appropriate to refer the matter back to the decision maker for reconsideration, this time with the benefit of reasons of the Court”. The decision-maker then has the choice of reaffirming or modifying his initial decision.

Vavilov also clarified that there are “limited scenarios” in which it would be inappropriate to return a case to the original decision maker.

These situations include those where it becomes clear to the Court that dismissal of the case “would not help”. The Court will consider factors such as:

  • delay;
  • fairness to the parties;
  • the urgency of finding a solution to the dispute;
  • the nature of the special plan;
  • whether the decision-maker had a real opportunity to speak out on the issues;
  • party fees; and
  • efficient use of public resources.

2. What is the probability that the decision will be reversed?

Most administrative decisions will be reviewed by the Divisional Court on a “substantive review”.

This means that the Court will analyze the merits of the decision and either defer to it, applying what is known as the “reasonableness review”, or show little deference to the decision, applying what is known as “correctness review”.

Vavilov creates a presumption of reasonableness in all cases. In other words, the Court is more likely to defer to the administrative decision than not.

That being said, the presumption of reasonableness control can be rebutted when:

  • the legislature has indicated that it intends to apply a different standard of review, i.e. a statute expressly prescribes the standard of review, that there is a statutory right to appeal from the decision or the case raises a question of law, such as the interpretation or scope of the decision-maker’s authority; Where
  • the rule of law requires that the less deferential standard of “correctness” apply, i.e. because certain legal questions, such as constitutional questions, are at issue, or because there are general questions of law of central importance to the legal system as a whole. Courts may also apply a correctness review when two or more courts have assumed jurisdiction over a case, creating an “operational conflict” between the two bodies.

In addition to review on the merits, another reason for the Court’s intervention in an application for judicial review concerns breaches of procedural fairness.

This includes situations where the decision maker may have violated fundamental principles of due process and natural justice, such as when the claimant’s right to be heard, to be informed of the reasons for the decision or the right to a impartial tribunal were compromised: see generally Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

3. Is there a right to appeal the decision?

If applicable law requires that the administrative decision at issue be appealed, judicial review, as a discretionary remedy, is not available.

The appellant is required to challenge the decision through the appeal mechanism provided by law.

The ordinary standards of review that apply to appeals, i.e. “palpable and overriding error” and “accuracy” apply: Vavilov, supraciting Housen c. Nikolaisen, 2002 SCC 33.

A party who ignores the avenue of appeal and pursues an application for judicial review in its place risks having the judicial review quashed on a preliminary motion for lack of jurisdiction.

4. Is new evidence required or admissible?

Applications for judicial review are almost always decided on the basis of the record as it existed in court.

Section 10 of the Ontario Act Judicial Review Procedure Act expressly requires the court to submit the record of its proceedings to the Divisional Court “promptly” upon commencement of an application for judicial review.

The content of the Tribunal’s case file is defined in paragraph 20 of the Statutory Powers Exercise Act.

In Ontario, there is a general prohibition against submitting new evidence or “fresh evidence” in an application for judicial review.

There are “rare exceptions” where new evidence may be admissible to: establish general context to assist the Court; demonstrate procedural defects that are not apparent from the record of the reasons for the decision; and demonstrate the complete absence of evidence to support a material finding of fact.

The claimant must also demonstrate that the new evidence should have been included in the record of the proceedings and that the documents properly constitute “new evidence” on the claim: see, for example, Lovell v. Ontario (Minister of Natural Resources and Forestry), 2022 ONSC 423.

5. Is the application for judicial review out of time?

Section 5(1) of the Judicial Review Procedure Act requires that an application for judicial review be made within 30 days of the contested decision.

A plaintiff who fails to meet this time limit will have to persuade the Divisional Court, under subsection 5(2), that the time to bring the claim should be extended because there are “apparent grounds for relief” and “no prejudice or significant harm will result to any person affected” by the delay.

How can we help you with your application for judicial review

Our Appellate Litigation Team at Torkin Manes offers assistance to plaintiffs or litigants regarding all aspects of a judicial review application, including:

  • A preliminary assessment of the merits of the request, including legal opinions and research;
  • Drafting notices of application for judicial review;
  • Drafting materials for application development, including briefs; and
  • Written and oral argument for the judicial review hearing.